Hidden defects in French property: 2-year limit, clause

What is a hidden defect in a home?

Three conditions follow from articles 1641 and 1642 of the Civil Code (Légifrance):

• a hidden defect: the seller “is not liable for apparent defects which the buyer could have ascertained for themselves” (art. 1642);
• a serious defect: it makes the home unfit for its use or greatly reduces that use (art. 1641);
• a defect predating the sale, since it must affect “the thing sold”.

The Cour de cassation ruling of 21 November 2019 illustrates these criteria: the expert report had found a leaning façade wall, roof purlins attacked by longhorn beetles and a rotten joist, concealed by a ceiling and lining walls and discovered only during demolition work. The cour d’appel (court of appeal) had held that the surveys annexed to the sale showed the age of the premises without making it possible to assess how serious the situation was (ruling published on courdecassation.fr).

The time limit: 2 years from discovery

“The action arising from redhibitory defects must be brought by the purchaser within two years of the discovery of the defect” (art. 1648, para. 1). The starting point is discovery, not signature: a defect revealed during works three years after the purchase opens a 2-year period from that day.

Sale of a property to be built (VEFA, off-plan sale). For apparent defects in a home sold off-plan, the action must be brought, on pain of being time-barred, within the year following the date on which the seller can be discharged from them (art. 1648, para. 2, referring to art. 1642-1).

Keep evidence of the date of discovery: a bailiff’s report, quotes, an expert report, written correspondence.

What the buyer can obtain

Source: Civil Code, articles 1644 to 1646 (Légifrance). The guarantee does not apply to sales ordered by a court (art. 1649).

The exclusion clause and the professional seller

Between private individuals, the clause is valid. The seller is liable for hidden defects “even if they were not aware of them, unless, in that case, they have stipulated that they will not be bound by any guarantee” (art. 1643). In the ruling of 21 November 2019, the Cour de cassation overturned a decision that had rescinded a sale even though an exclusion clause appeared in the deed and the sellers were lay sellers (vendeurs profanes) (no. 18-19.084).

It falls away if the seller knew. Article 1643 covers only a defect the seller was unaware of. Proving that the seller knew of it (concealment works, previous insurance claims, witness statements) reopens the action, with damages (art. 1645).

A professional seller cannot rely on it. In the same case, the cour d’appel recalled that “the professional seller is presumed to know the defects of the thing sold” and that this presumption is irrebuttable; it held that the purchaser, deprived by the clause of any recourse against the lay sellers, could act against the party described as a “professional seller” in the deed. The Cour de cassation upheld the order against the latter to pay damages (ruling published on courdecassation.fr).

Missing surveys. If the seller does not provide the asbestos report or the electrical survey, they cannot exclude the hidden defects guarantee (service-public.gouv.fr, pages F742 and F18692).

Hidden defects or ten-year guarantee?

For a home built or extensively renovated less than 10 years before the sale, serious damage (soundness, unfitness for intended use) falls first under the builders’ garantie décennale (ten-year guarantee), which follows the property through successive owners; the deed of sale must state whether or not the compulsory insurance policies exist (service-public.gouv.fr, page F2034). See our guide to the ten-year guarantee and dommages-ouvrage insurance.

Which professional to consult

Before you sign, the notaire checks the wording of the exclusion clause, the seller’s status and the construction insurance certificates. A certified diagnostiqueur (property surveyor) prepares the dossier de diagnostic technique (technical survey file), without which the seller loses the benefit of the clause for asbestos and electricity. If a defect appears after the purchase, the agent immobilier (estate agent) who handled the sale can pass on the correspondence and documents provided by the seller.